5.  The applicant was provost of the Eisgarn monastery and principal (Regens) of the St Pölten seminary, where future Roman Catholic priests are trained. He resigned from his post as principal on 4 July 2004.
6.  In the issue of the weekly news magazine Profil of 5 July 2004 an article was published on searches carried out by police in the St Pölten seminary. According to the article, police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet. The article further stated that, according to rumours, police had also found photographs showing seminarians engaging in homosexual activities, and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority. The article was accompanied by a photograph of the applicant, showing him standing in a garden, and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian. He denied involvement in any such incidents.
7.  In its issue of 12 July 2004 Profil published an article entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.”
8. The article stated that the applicant and the deputy principal had had sexual relations with seminarians and that two of them had regularly spent weekends or longer periods with the applicant at the Eisgarn monastery. It also stated that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported earlier. The article further reported that some seminarians had downloaded pornography and child pornography onto their computers. According to the article, the existence of homosexual relations was well-known within the seminary and was even known to the bishop, who had tried to “hush up” the case at first. The article contained a photograph showing the applicant with his left arm around one of the seminarians, holding the seminarian’s wrist with his left hand and with his right hand on the man’s crotch. This picture had been taken by one of the seminarians at a birthday party and the applicant was shown looking into the camera, apparently aware that he was being photographed. In the article the applicant was identified by name while the seminarians’ identities were not disclosed. Likewise, in the published photograph, the applicant’s face was visible while that of the seminarian was blurred. The article was also accompanied by a statement from the applicant saying that the photograph could be interpreted in different ways.
9.  On 6 August 2004 the applicant initiated proceedings under the Media Act (Mediengesetz) against Verlagsgruppe News GmbH, the publisher of Profil, in relation to the article published on 12 July 2004. Relying on sections 6 and 7 of the said Act, he requested compensation for defamation (üble Nachrede) and for the violation of his strictly personal sphere (höchst­persönlicher Lebensbereich) caused by the publication of the photograph and the impugned article, especially the following passages:
“‘Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray.’; ‘A painful truth: Krenn’s principal engaged in sex with subordinates, also Krenn’s private secretary and legal adviser ...’; ‘Photos showing, among others, seminarians from St Pölten in kinky situations, in some cases with their superiors ... and because they were doing it with the boss and his deputy too, it was all quite normal and they felt perfectly safe ...’; and ‘In June of the previous year principal Ulrich Küchl allegedly performed a kind of ‘sacrament of marriage’ between H. and Polish priest A. in a St Pölten restaurant.’”
10.  The publisher of Profil replied that the content of the article was true. The company also argued that in the light of the Roman Catholic Church’s position condemning homosexuality, and the fact that the applicant was responsible for the training of future priests in the seminary, the public had an interest in knowing about the facts published in the article and there was a direct connection with public life. The article was thus lawful by virtue of the right to freedom of expression guaranteed by Article 10 of the Convention.
11.  On 15 September 2005, after holding several hearings at which evidence was heard from a number of witnesses, the Vienna Regional Criminal Court (Landesgericht, hereinafter “the Regional Court”) dismissed the applicant’s request for compensation.
12.  The Regional Court observed that a large percentage of readers of the weekly Profil that had published the impugned article and the photograph would read the news magazine in only a cursory manner and would also consult other media before forming their opinion. Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians, and that there existed photographs to support this. The published photograph showed that the applicant and the seminarian were more than just friends and had had homosexual contacts. It represented the applicant with his left arm around the seminarian and his hand on the man’s crotch and conveyed the impression that the latter consented to this close embrace.
13.  Giving a detailed evaluation of various witness statements, the Regional Court found it established that the applicant had had consensual homosexual relationships with several seminarians, one of whom had repeatedly spent weekends at Eisgarn monastery; this had led to an explicit instruction from Bishop Krenn prohibiting such visits by seminarians. Furthermore, the court found that the applicant had spent a holiday with a seminarian during which they shared an apartment in a hotel. It also found that the applicant had performed a ceremony in a restaurant which an outside observer could have understood as bestowing a kind of “sacrament of marriage” on two seminarians. Moreover, the statements of the witnesses had confirmed that the published photograph had been taken in the applicant’s apartment at Eisgarn monastery during a birthday party for one of the seminarians. The Regional Court therefore held that the facts contained in the article were in essence true.
14.  Owing to the considerable importance of the Roman Catholic Church as a role model, the public had a great interest in being informed about what was going on within the Church. The public also had an interest in knowing what happened in the seminary, especially since it had become known that pictures containing child pornography had been downloaded from the Internet. The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life. The applicant, as the head of the seminary, was a public figure in that capacity. Even though the impugned picture had been taken in his private residence there was a connection to his public life. While accusing a dignitary of the Roman Catholic Church of having homosexual contacts constituted the actus reus of defamation within the meaning of section 6 of the Media Act and exposed his strictly personal sphere within the meaning of section 7 of the said Act, the publisher had proved that the reported facts were essentially true. Accordingly, the applicant’s claim for compensation had to be dismissed.
15.  The applicant lodged an appeal on points of law and fact with the Vienna Court of Appeal (Oberlandesgericht). The Court of Appeal, after holding a hearing, dismissed the appeal in a judgment of 24 May 2006.
16.  The Court of Appeal upheld the judgment of the Regional Court, ruling that the said court had not erred in fact or in law and had rightly held that the newspaper publisher had managed to prove that the content of the article was true. Regarding the complaint concerning the performance of a sort of sacrament of marriage, the Court of Appeal found that it had not been proven that this allegation was true; however, the allegation in question made up only a minor part of the article and thus would not render the judgment void. Furthermore, the Court of Appeal held that, in reporting on photographic evidence of seminarians in “kinky situations”, the publisher had provided proof that the statements were true. The average reader of the magazine would understand the term “kinky” to mean a deviation from what was considered normal, which would include a photograph of priests and seminarians in a sexual pose wearing clerical clothing, especially as the persons concerned belonged to a group of people who publicly spoke out against homosexuality and denounced homosexual contacts as sinful. The Court of Appeal went on to state as follows:
“The court cannot accept the additional arguments to the effect that the substantive law was incorrectly applied because the conduct reported on fell within the sphere of strictly private life and had no connection with public life. The Catholic Church, to which the majority of the Austrian population belongs and which, according to Article II of the Concordat (BGBl. II No. 2/1934), has public-law status, has a level of importance in Austria going beyond that of a small association, as is clear from the overall content of the Concordat and the circumstances in which it was ratified. Accordingly, conduct on the part of Church dignitaries which is in flagrant contradiction with Catholic teachings may very well be of public interest, particularly where – as in the present case – homosexual contacts take place and are maintained, albeit on a consensual basis, between staff and students in an educational establishment and between students themselves. The Catholic Church strives for acceptance and credibility among the public at large, and the activities of a principal and a deputy principal, particularly those in charge of a training college for future priests, are directly related to public life. The Catholic Church is engaged in public relations work in many spheres and regularly makes its views on (sexual) morality known to the population as a whole, with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach, condemning homosexuality as a sin in public while practising it in private, even between staff and students. It should also be taken into consideration that the teachings of the Catholic Church on the subject of homosexuality are contrary to the fundamental right to sexual self-determination under Article 8 of the European Convention on Human Rights and to the prohibition on discrimination; hence, on this basis also, there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their Church’s teachings on sexual morals. This is even more so where the reports concern homosexual contacts between a teacher and his students. Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students. The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law.
The exposure and public condemnation of such misconduct is thus in any event in the public interest; the same is true of the reports identifying those concerned, without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of “public watchdog”. The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails. The professional activity of an ordained priest who is active in public life both as a clergyman and as head of a seminary does not take place merely within the Church; the Catholic Church has an important and, in some respects even a State role, and the credibility of its officials, who demand moral standards from the population and compliance with the Church’s rules of community life, occupies an important position in that regard. In particular, the fact that the events involved students who, as future officials of the Catholic Church are supposed to be taught these moral precepts by example, lends those events a public-interest dimension extending beyond the Church itself and affects all sections of the population...”
17.  The Court of Appeal concluded that since the article had reported essentially true facts and there was a public interest in their being reported, the Regional Court had rightly rejected the applicant’s request for compensation. The judgment was served on the applicant’s counsel on 12 June 2006.
18.  On 9 July 2004, after publication of the first article in Profil (see paragraph 6 above), the applicant brought proceedings against the publisher and the editor-in-chief under the Copyright Act (Urheberrechtsgesetz) and the Civil Code (Allgemeines Bürgerliches Gesetzbuch). Those proceedings are the subject of application no. 59631/09, Verlagsgruppe News and Bobi v. Austria. They are summarised here, in so far as is necessary for the examination of the present case.
19.  Relying on section 78 of the Copyright Act the applicant asked the Vienna Commercial Court (Handelsgericht) to order the publisher of Profil and its editor-in-chief to
(i)  refrain from making and publishing express statements or statements to the effect that photographs existed which showed him having homosexual contacts or appeared to show that he was homosexual and
(ii)  refrain from publishing photographs of the applicant which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances involving abuse of authority, which were damaging to his honour and reputation.
20.  The applicant also requested the Commercial Court to issue an interim injunction prohibiting the publisher and the editor-in-chief of Profil from publishing the above-mentioned statements and pictures.
21.  After publication of the second article in the issue of Profil of 12 July 2004, showing for the first time the photograph of the applicant with his hand on the seminarian’s crotch, the applicant notified the Commercial Court of the further statements contained in that article and of the fact that the photograph had been published. He repeated the requests made on 9 July 2004.
22.  In so far as relevant in the context of the present case, the applicant’s request for an interim injunction was rejected by the Vienna Commercial Court, which gave its decision on 29 March 2005, and by the Vienna Court of Appeal, which gave its decision on 18 June 2005.
23.  In a decision of 15 December 2005 the Supreme Court varied the lower courts’ decisions, granting point (ii) of the applicant’s request for an interim injunction. The publisher and the editor-in-chief of Profil were thus prohibited from publishing photographs of the applicant, in particular in connection with allegations of unwanted homosexual advances involving abuse of authority, which were damaging to the applicant’s honour and reputation. However, the Supreme Court dismissed point (i) of the applicant’s request, namely that the defendants be ordered to refrain from making and publishing express statements or statements to the effect that photographs existed which showed the applicant having homosexual contacts or appeared to show that he was homosexual.
24.  The Supreme Court (Oberster Gerichtshof) held that even the publication of true statements was capable of interfering with a person’s right to privacy and thus might become unlawful. In such cases the interests of the persons concerned in the protection of their reputation or the intimate sphere of their private lives had to be weighed against the interests of the recipient of the information. Referring to the Court’s case-law under Article 10 of the Convention, the Supreme Court noted the importance of freedom of the press, in particular where the latter reported on issues of general interest. In the present case, information about the homosexuality of officials of the Roman Catholic Church was an important issue and as such was often the subject of public attention and discussion. It was the media’s task to report and comment on actual cases. Thus, the applicant’s interest was outweighed by the publisher’s right to publish the statements, the truth of which was not in dispute.
25.  As to the publication of the photograph, the Supreme Court held as follows:
“1.  The publication of images that would cause injury to legitimate interests is prohibited (section 78(1) of the Copyright Act). The injury must arise out of the actual publication of the image (RIS-Justiz RS0077782). However, not only the image itself must be assessed, but also the manner of its dissemination and the context in which it is set (RS0078077). The assessment as to whether legitimate interests have been infringed must aim to establish whether the interests of the person depicted can be objectively said to be worthy of protection (4 Ob 165/03y = MR 2003, 377 with further references). 2.  On the basis of these principles, the interests of the claimant in the present case should be considered worthy of protection, contrary to the Court of Appeal’s view.
The accompanying text portrays the claimant in a negative light. He is neither a ‘figure of contemporary society ‘par excellence’’ (to use the terminology of the German case-law) nor a ‘public figure’ (the term used in Austrian legal practice) whose appearance was already known to the general public before the picture was published (4 Ob 15/93). It is clear that the publication of the picture intensifies the demeaning effect of the accompanying text, which is damaging to the honour of the person concerned (‘pillorying effect’). In such cases, therefore, publication of the picture can be justified only if, after the required weighing of interests, the interest of the publisher in publishing is found to prevail (RIS-Justiz RS0077767). However, that is not the case here. The protection of the intimate sphere of the claimant’s private life carries greater weight in this case than the public interest in being informed of the image, in contrast to the case already examined concerning the text of the article. Of course, there is some force to the Court of Appeal’s argument that publication was designed to some extent to ‘prove the claimant guilty’ after he had denied the accusations as ‘slander’, and thus to allow the public to make up its own mind on the basis of the photograph. In the Supreme Court’s view, however, this argument is not sufficiently decisive to justify intruding upon the intimate sphere of the claimant’s private life and providing documentary ‘evidence’ of the allegations denied by the claimant. It must first be taken into consideration that the photograph was taken at a private party and thus indisputably fell within the private sphere protected by Article 8 of the ECHR. If sexual freedom between consenting adults is recognised as an absolute personal right and the innermost private sphere is protected under the Constitution, then this must also apply in principle to members of religious organisations and Church officials, even if the practice of that sexual freedom is contrary to the Church’s teachings. Forfeiture of the right to anonymity requires particularly weighty reasons which do not apply here to the required degree. There is no overriding interest for the public at large to be informed of the claimant’s appearance and to identify him via publication of his photograph. Even when publication takes place in connection with a criminal offence, the principle of proportionality of the interference applies. Likewise, even a genuine need to inform must not go beyond what is strictly necessary, so that it cannot be accepted in all cases in which the public has reason to take an interest in a particular individual that there is a genuine need to be shown a picture of that person (RIS-Justiz RS0077883). The interest in dissemination of a picture can only take precedence if the picture has a particular news value – for instance, to warn the public about an escaped criminal (4 Ob 63/95 = SZ68125 4 Ob 1013/96). In any case, the proportionality principle prohibits publication merely in order to satisfy an appetite for scandal. The interest in being informed can be sufficiently met without publication of an image, simply by reporting the facts and referring to the existence of a photograph (several photographs) as evidence.”
26.  On 4 July 2006 the applicant narrowed his previous claim to the publication of pictures, amended the wording of the injunction sought and added a claim for damages. He thus requested the court to order the publisher of Profil and its editor-in-chief to refrain from publishing photographs of him which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances towards seminarians involving abuse of authority, and/or of engaging in sexual antics or “kinky” situations with seminarians or similar allegations.
27.  In a judgment of 18 June 2007 the Vienna Commercial Court rejected the claims.
28.  In a judgment of 13 December 2007 the Vienna Court of Appeal partly granted the applicant’s appeal. Relying on section 78 of the Copyright Act, it prohibited the publication of photographs of the applicant which violated his legitimate interests by accusing him of unwanted homosexual advances towards seminarians, especially involving abuse of authority, and of engaging in sexual antics or “kinky” situations with seminarians or similar accusations. However, it dismissed the claim for compensation.
29.  The Court of Appeal summarised the content of the articles published in Profil on 5, 12 and 19 July 2004 and the reasoning set forth by the Supreme Court in its decision of 15 December 2005 in the interim injunction proceedings. It went on to state as follows:
“No factual circumstances came to light in the main proceedings which would cause the Supreme Court to alter the manner in which it weighed the interests at stake in the preliminary injunction proceedings.
It was established that the photograph was taken in Eisgar monastery at the birthday party of one of the seminarians, attended by the claimant and four or five students of the seminary. The party was held in a meeting room and a ‘reception room’ of the apartment made available to the claimant in his capacity as provost of the monastery.
Protection of the private sphere encompasses all matters which, on the basis of their information content, are typically classified as private. This covers individuals in their home, family or other environment removed from the public gaze (Neukamm, Bildnisschutz in Europa, 118). The right to protection of one’s private sphere encompasses the spaces in which the individual can rest, relax or simply let go. This includes any premises from which the individual can exclude outsiders and escape the public gaze (Neukamm, loc. cit., 120).
On that basis, there can be no doubt that the birthday party in the claimant’s apartment fell within the private sphere, despite the fact that it was attended by seminarians and took place (partly) in a ‘reception room’ in the claimant’s apartment.
It is therefore unnecessary to further elaborate on the fact that the concept of private life within the meaning of Article 8 ECHR is to be construed broadly, that it extends to business and professional relationships and that the scope of protection of private life goes beyond the home and can even extend into the public sphere. An important consideration is whether a person, in the specific circumstances of the case, can reasonably expect to have his or her right to private life protected (Neukamm, loc. cit., 213). Hence, it is beyond dispute that the photograph in question falls (exclusively) within the claimant’s private sphere.
Furthermore, the Supreme Court previously ruled in the preliminary injunction proceedings that the public interest in the text of the article did not automatically justify publication of pictures of the person concerned.
The publication of pictures depicting private conduct is not justified on the grounds of the public’s interest in being informed (Neukamm, op. cit., 233, and ECtHR judgment of 11.1.2000, application no. 31457/96 – News Verlag GmbH). This applies also to articles concerning private-life matters (Neukamm, op. cit., 235). If the publication of photographs serves the public’s interest in being informed, that interest must be weighed against the personality rights of the person depicted. As a general rule, the latter should prevail (Neukamm, op. cit., 236).”
30.  The Court of Appeal also upheld the Commercial Court’s decision in so far as the latter had dismissed the applicant’s claim for damages. It noted that damages under the Copyright Act were to be awarded only if the general requirements laid down in the Civil Code were met. In particular, it was necessary for the publisher to have acted culpably, with at least minor negligence. In the present case, the defendants had based their decision to publish the photograph on an arguable legal opinion. It was a borderline case in which a detailed weighing of the interests at stake had eventually led to the assessment that the publication of the photograph at issue had violated the applicant’s legitimate interests. In the preliminary injunction proceedings the Commercial Court and even the Court of Appeal had come to the opposite conclusion, holding the view that the publication of the picture had an information value of its own, while the Supreme Court had overturned their decisions. In these circumstances, the defendants were entitled to believe that the publication of the picture was admissible, and they had therefore not acted culpably.
31.  The applicant and the defendants lodged extraordinary appeals on points of law with the Supreme Court.
32.  The Supreme Court rejected the extraordinary appeals in a judgment of 26 March 2009, holding that the prerequisite for it to deal with the case, namely a question of law which was of fundamental importance for the unity of the law, was not met. With regard to the defendant’s appeal it noted that it had already given detailed reasons in its decision of 15 December 2005 explaining why, as far as the publication of the photograph was concerned, the applicant’s interests in the protection of his private sphere under Article 8 of the Convention outweighed the freedom to impart information protected by Article 10 in the circumstances of the present case. The Vienna Court of Appeal had followed that reasoning in the main proceedings.
33.  Finally, the Supreme Court dismissed the defendant’s argument that the courts’ decisions in the proceedings under sections 6 and 7 of the Media Act were binding on the courts in the present case. It held that a decision taken under sections 6 and 7 of the Media Act did not resolve a preliminary question (Vorfrage) in relation to the claim under section 78 of the Copyright Act. There was no logical contradiction in prohibiting a newspaper publisher from publishing a picture under section 78 of the Copyright Act while on the same facts dismissing a compensation claim under sections 6 and 7 of the Media Act. The finding that the requirements for granting compensation were not met did not provide a basis for concluding that the publication of a picture did not violate legitimate interests within the meaning of section 78 of the Copyright Act.